Book Review: Harmfulness, Wrongfulness, Lesser Evils and Risk-Creation: A Comment on Douglas Husak’s Overcriminalization

Abstract

Overcriminalization is a terrific book. It tackles a problem of great importance, given the staggering amount of punishment dealt out by the courts and evidenced in the overpopulation of prisons in the United States and elsewhere, at least some of which is unconscionably excessive, and the book offers very plausible proposals for limiting the creation of criminal law. It is an unabashedly normative book. Husak’s interest is in how law ought to be. But the book adopts none of the extremes of methodology that we find in much normative philosophy. The book does not attempt to derive constraints on criminal law from the fundamental principles of a previously accepted moral or political theory; it does not offer conditional arguments of the form “If you accept such-and-such moral or political theory (e.g. Kant’s, or Utilitarianism, or whatever), then you ought not to approve of prohibitions violating such-and-such constraints.” But nor does it start with intuitions about the unacceptability of particular criminal prohibitions or about the injustice of punishments of particular actual or hypothetical people and then rationalize those intuitions, post hoc, through appeal to general principles that systematize them. Rather, the book offers a range of different sorts of arguments for what might be called “mid-level principles”—principles that are too specific and narrow to serve as the axioms of a moral or political theory but are sufficiently general that they do not amount merely to intuitive pronouncements about particular prohibitions or particular cases. It seems to me that it is through appeal to such mid-level principles that we actually reason, and ought to reason, when we worry about normative problems, and so I think Husak has adopted exactly the right approach. He is neither in the bedrock nor in the sky, but on the surface where we all actually live.